Opinion
CIV. NO. 2:12-CV-280 CRIM. NO. 2:10-CR-225(4)
05-14-2013
GUADALUPE VILLA-RODRIGUEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE MARBLEY
MAGISTRATE JUDGE KING
ORDER and
REPORT AND RECOMMENDATION
Petitioner brings this action to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the original Motion to Vacate, Doc. No. 140, respondent's Return of Writ, Doc. No. 171, petitioner's Reply, Doc. No. 179, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that counsel be appointed to represent petitioner at an evidentiary hearing on his claim that he was denied the effective assistance of counsel because his attorney failed to file an appeal after having been requested to do so and failed to consult with him regarding the filing of an appeal. The Magistrate Judge further RECOMMENDS that the remainder of petitioner's claims be DISMISSED.
Petitioner's Motion for a Status Update, Doc. No. 182, is DENIED as moot.
FACTS and PROCEDURAL HISTORY
Petitioner, along with a number of other individuals, was originally charged by way of indictment with conspiracy to engage in hostage taking and hostage taking in violation of 18 U.S.C. § 1203 (Counts 1 and 2), possession of firearms in furtherance of those crimes of violence in violation of 18 U.S.C. § 924(c) (Counts 3-8), and possession of firearms while being an alien illegally and unlawfully in the United States in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2) (Counts 9-14). Indictment, Doc. No. 1. Petitioner pled guilty, pursuant to a negotiated plea agreement, Plea Agreement, Doc. No. 80, to Count 13 of the Indictment, which charged him with possession of a rifle while being an alien illegally in the United States. Petitioner was sentenced to a term of imprisonment of 111 months, to be followed by a three year term of supervised release. Judgment, Doc. No. 111. Petitioner did not file an appeal.
On April 2, 2012, petitioner filed the Motion to Vacate pursuant to 28 U.S.C. § 2255, Doc. No. 140. He alleges that he was denied the effective assistance of counsel because his attorney coerced him into pleading guilty (claim one), failed to subject the prosecution's case to meaningful adversarial testing at sentencing (claim two) and failed to file a notice of appeal after having been requested to do so (claim three); petitioner also alleges that the Court lacked subject matter jurisdiction as to Counts 1-9 of the Indictment (claim four).
Petitioner signed the petition on March 12, 2012.
In his claim five, petitioner also alleged that he was convicted in violation of the Fourth Amendment by reason of the use of "GPS Hits." Petitioner has withdrawn that claim. Reply, Doc. No. 179, PageID #768-69.
INEFFECTIVE ASSISTANCE OF COUNSEL
In claims one through three, petitioner alleges that he was denied the effective assistance of counsel. In claim one, petitioner specifically alleges that his guilty plea was coerced by his counsel, who assured petitioner that he would be sentenced to no more than five years incarceration if he pleaded guilty; had he been properly advised by his counsel, petitioner argues, he would have proceeded to trial. Motion to Vacate, PageID #504. In claim two, petitioner complains that his attorney failed to object to an increase in the sentence recommended under U.S.S.G. § 2A4.1, failed to provide petitioner with discovery materials, failed to conduct adequate research and investigation in regard to the filing of pre-trial motions and failed to file a sentencing memorandum. Motion to Vacate, PageID #507-11. In claim three, petitioner alleges that his attorney failed to file an appeal after having been requested to do so. Motion to Vacate, PageID # 512-15. In support of these claims, petitioner has submitted his affidavit in which he states in relevant part as follows:
I can not speak English which has subjected me to being mis-led and taken advantage of by my defense counsel in the case at bar.Affidavit of Guadalupe Villa-Rodriguez, attached to Motion to Vacate, PageID #500-501[sic](emphasis in original).
Although some of my sworn statements herein contradict my statements made under oath during my Rule 11 colloquy this is as the result of coercion by my attorney W. Joseph Edwards.
I repeatedly requested my Discovery material from my attorney but he never provided me with a copy of my Brady material in the case at bar.
My attorney Mr. Edwards only came to visit me several times advising me to plead guilty he never explained to me a potential trial strategy he only advised me to plead guilty.
My attorney Mr. Edwards informed me, I could receive up to 10 yrs. in federal prison but upon accepting guilty plea he could get no more than 5 years in federal prison.
My attorney Mr. Edwards erroneously informed and induced my guilty plea by his promise that, I would only receive 5 years in federal prison but then recommending at my sentencing that I receive the statutory maximum of 10 years in federal prison. My counsel coerced my guilty plea and if not for his coercion I would not plead guilty but would have insisted on going to trial in the case at bar.
My attorney came to visit me one (1) day prior to me being sentenced he told me that the P.S.I. recommended 20 years in
federal prison but he never reviewed P.S.I. Report with me or gave me a copy of my P.S.I. in the case at bar.
***
My attorney was ineffective for failing to file my notice of appeal as, I instructed him to do on the record at my sentencing.
My attorney was ineffective. . . for failing to come visit me as he informed the District Court on the record that he would visit me in Delaware to explain to me the advantages and disadvantages to filing a notice of appeal for a direct appeal to commence. . . .
As a result of the coercion and inducement of my guilty plea by Attorney Edwards my plea of guilty was entered involuntary[ily] and is therefore VOID & must "set aside". . . .
In response to these allegations, respondent has submitted the affidavit of petitioner's former trial counsel, which states in relevant part as follows:
Mr. Villa-Rodriguez was charged by indictment with fourteen counts relating to a hostage and kidnapping conspiracy on AugustAffidavit of W. Joseph Edwards, attached to Return of Writ, PageID #726-27.
26, 2010.
After obtaining discovery in this matter, I met with Mr. Villa-Rodriguez on October 5, 2010, for four (4) hours and October 13, 2010 for three and a half (3.5) hours. During these meetings we discussed the evidence against him, the strengths and weaknesses contained therein, the pros and cons of going to trial, and the possible penalties he faced should he be found guilty. Due to Mr. Villa-Rodriguez's lack of fluency in English, I had an interpreter at these meetings.
On November 2, 2010, after obtaining a plea offer from Assistant U.S. Attorney Kevin Kelley, I met again . . . with Mr. Villa-Rodriguez for three (3) hours. As with my previous meetings, I obtained an interpreter for this meeting. At this meeting, I explained to Mr. Villa-Rodriguez that should he plead guilty to Count 13 of the Indictment, the United States would dismiss the other charges and he would be facing a maximum of ten (10) years
in federal prison. Additionally, I explained the penalties he would face under the United States Sentencing Guidelines should he go to trial and be found guilty. After much discussion in which I answered all of Mr. Villa-Rodriguez's questions, Mr. Villa-Rodriguez decided that pleading guilty was in his best interest.
On December 10, 2010, I appeared before this Honorable Court with Mr. Villa-Rodriguez and he entered a guilty plea to Count 13.
I met with Mr. Villa-Rodriguez two more times after the P.S.R. had been completed by the United States Probation Department. As before, an interpreter was present. At those meetings I indicated that although he had "guidelined out" at an offence level of 37 and a criminal history level of 1 and thus, under the guidelines was looking at a sentencing range of 210-262 months, because he had pled guilty to Count 13 the most time he was facing was 120 months - or ten years - under 18 U.S.C. § 922(g)(5).
Mr. Villa-Rodriguez was sentenced to 110 [sic] months on April 1, 2011.
I represented Mr. Villa-Rodriguez to the best of my ability. The evidence against him was incredibly strong and I believe his plea to Count 13 of the Indictment was in his best interest. Further, I believe that Mr. Villa-Rodriguez entered his plea of guilty knowingly, voluntarily, and intelligently
Claims One and Two:
In claim one, petitioner alleges that his guilty plea was coerced by his counsel, who assured petitioner that he would be sentenced to no more than five years incarceration if he pleaded guilty; had he been properly advised by his counsel, petitioner argues, he would have proceeded to trial. Motion to Vacate, PageID #504. In claim two, petitioner complains that his attorney failed to object to an increase in the sentence recommended under U.S.S.G. § 2A4.1, failed to provide petitioner with discovery materials, failed to conduct adequate research and investigation in regard to the filing of pre-trial motions and failed to file a sentencing memorandum. Motion to Vacate, PageID #507-11. Because a criminal defendant waives numerous constitutional rights when he enters a plea of guilty, the plea must be entered into knowingly and voluntarily in order to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969). "'The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In applying this standard, a court must look at the totality of circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976).
Criminal defendants are entitled to the constitutionally effective assistance of counsel during the plea negotiation phase. Missouri v. Frye, –– U.S. ––, 132 S.Ct. 1399, 1407 (2012) ("In today's criminal justice system, . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.") See also Lafler v. Cooper, –– U.S. ––, 132 S.Ct. 1376, 1386 (2012); Humphress v. United States, 398 F.3d 855, 859 (6th Cir. 2005) (citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)).
The decision to plead guilty - first, last, and always - rests with the defendant, not his lawyer. Although the attorney may provide an opinion on the strength of the government's case, the likelihood of a successful defense, and the wisdom of a chosen course of action, the ultimate decision of whether to go to trial must be made by the person who will bear the ultimate consequence of a conviction.Smith v. United States, 348 F.3d at 552 (6th Cir. 2003). The United States Court of Appeals for the Sixth Circuit has described the obligations of defense counsel as it relates to advice during the plea negotiation stage:
A criminal defendant has a right to expect at least that his attorney will review the charges with him by explaining the elements necessary for the government to secure a conviction, discuss theId. at 553 (citing United States v. Day, 969 F.2d 39, 43 (3rd Cir. 1992)).
evidence as it bears on those elements, and explain the sentencing exposure the defendant will face as a consequence of exercising each of the options available. In a system dominated by sentencing guidelines, we do not see how sentence exposure can be fully explained without completely exploring the ranges of penalties under likely guideline scoring scenarios, given the information available to the defendant and his lawyer at the time.
A prisoner may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). The two part test of effective assistance of counsel announced in Strickland v. Washington, 466 U.S. 668, 687 (1984), applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir.1988). In order to obtain relief, a prisoner raising such a claim must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.
The second, or "prejudice" requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.
Here, pursuant to the terms of petitioner's negotiated Plea Agreement, the government dismissed Counts 1 through 12 and 14 of the Indictment, which included six counts under 18 U.S.C. § 924(c), each of which carried a mandatory minimum consecutive term of five years incarceration. Petitioner obtained a three level reduction in his recommended sentence for his acceptance of responsibility. At his change of plea proceeding, see Transcript of Plea Proceedings, Doc. No. 132, petitioner indicated that he understood that the United States would "advocate that the sentencing Guideline calculations should be made pursuant to U.S.S.G. §§ 2K2.1(c)(1)(A), 2X1.1 and 2A4.1 based on the underlying offense of hostage taking." Id., at PageID # 434; Plea Agreement, PageID #192.
Petitioner also indicated that he had discussed with his attorney - with the assistance of an interpreter - the charges against him and that he understood the nature and meaning of the offense to which he was pleading guilty. Transcript of Plea Proceeding, PageID #422-23. He had told his attorney everything he knew about the case against him and he believed that his attorney was fully informed about the facts and circumstances on which the charge was based. His attorney had fully advised him as to any potential defenses. Id., PageID #426-27. He was satisfied with his attorney's advice and representation. Id., PageID #427. The Court advised petitioner of the elements of the offense to which he pleaded guilty and of the maximum penalty that he faced should his guilty plea be accepted. Id., PageID #428. Petitioner indicated that he understood that the Court could impose that maximum sentence. Id., PageID #429; see also Plea Agreement, PageID #192. The Court advised petitioner of all the rights waived by the entry of his guilty plea and petitioner indicated that he understood that waiver. Transcript of Plea Proceeding, PageID #429-30, 431-32. He stated that he had discussed with his counsel how the Sentencing Guidelines might apply to his case. Id., PageID #430. He understood that he had the right to appeal any sentence imposed. Id., PageID #431. The Assistant United States Attorney summarized the terms of the Plea Agreement. Id., PageID #433-34. Petitioner agreed with those terms. Id., PageID #434-35. Petitioner denied that he had been assured a reduced sentence or any other form of leniency in exchange for his guilty plea; he indicated that he was pleading guilty of his own free will and volition; he denied that he had been threatened or forced into entering the guilty plea. Id., PageID #435.
An investigating agent summarized the facts underlying the case as follows:
On December 14th, 2009, Matias Gallegos-Villagomez and Guadalupe Villa Rodriguez traveled in two cars along with six other men, to attempt to locate Manuel Hernandez. Several weeks prior, Hernandez had stolen a kilo of cocaine that had been delivered to him by Mauricio Martinez Diaz. The defendants were now looking for Hernandez to obtain the money he owed to Augustin, aka Pedro, for these drugs. In the early evening, in an area just north of Morse Road around Urban Drive and Kingshill Drive, the men saw Hernandez and a shootout ensued. Hernandez fled but the men were able to follow a light blue Dodge Caravan being driven by Monica Barrera, the girlfriend of Hernandez. Their three-year-old daughter was also in the vehicle.Transcript of Plea Proceeding, PageID #436-39. Petitioner agreed with the truth of these facts. Id., PageID #439. He admitted his guilt on the charge contained in Count 13 of the Indictment. Id., PageID #440.
Shortly thereafter, the eight men in both cars were able to block Barrera's car and several men made entry into their vehicle with guns drawn. The men forced Barrera out of the driver's seat and then covered her eyes. The Dodge Caravan was then driven to 2166 Gaver Lane, the residence of Augustin. Barrera and her daughter were taken inside the residence and the Dodge Caravan was driven away from the scene and left in a parking lot on the west side of Columbus.
While inside the house, a series of phone calls were made to Hernandez by Augustin demanding $20,000 to $30,000 in payment for the safe release of Barrera and the child.
Though Barrera and the child were not shackled or restrained, they also were not free to leave the house. During this time, Barrera also saw a number of firearms that were being carried, loaded, and passed among the eight men inside the house. By 10 p.m. that evening, law enforcement had become aware of this incident and set up surveillance on the house at 2166 Gaver Lane.
Around 10:45 p.m., Martin and Mauricio left the residence and entered a Volkswagen Jetta, Ohio license plate EYE-4081 that belonged to another of the remaining men. When going to this vehicle, Martin was carrying a loaded Ejercito Argentino, .45 caliber pistol bearing serial number 27222. Mauricio agreed to drive the Jetta, and Martin placed the handgun under the driver's seat. Officers with the Columbus Police Department observed the
Volkswagen Jetta leaving the residence and arranged for it to be stopped, and both men were arrested. The .45 caliber pistol was seized after it was found sticking out from under the driver's seat. This gun was manufactured in Argentina and had been imported into the state of Virginia.
Meanwhile, inside the residence, negotiations with Hernandez had concluded and the remaining six men made plans to leave the residence to attempt to meet with him. It was agreed amongst the men that Guadalupe Villa Rodriguez would remain inside the house with Barrera, the child, and two remaining rifles while the other five men would leave to meet with Hernandez. At 12:50 a.m. on December 15, 2009, Matias, along with the other five men, left the residence.
The men were armed with a loaded Ruger P95DC, a 9mm handgun, a loaded Haskel .45 caliber handgun, and Matias Gallegos-Villagomez carried a loaded sawed-off Reminton 870 Wingmaster shotgun. All five men entered a black Ford F-150 pickup and left the residence. CPD officers stopped the vehicle and arrested Matias and the four other men. Officers immediately noticed and seized the sawed-off Remington shotgun which was in plain view on the floor of the interior of the pickup truck. This Remington shotgun, bearing serial number T641539, was manufactured in the state of New York. Officers also seized the loaded Ruger and Haskel firearms from inside the pickup truck. Augustin was found in possession of Barrera's Mexican identification card and a digital memory card from her camera.
Ultimately, a search warrant was executed at 2166 Gaver Lane around 6 a.m. on December 15th 2009, and Barrera and her child were safely recovered and Guadalupe Villa Rodriguez were [sic] arrested.
Inside the residence, officers found a Mosin-Nagant Model 1944 rifle bearing serial number RH588/13598, and a Feather Industries Model AT-9 rifle bearing serial number A90355. ATF determined that the Mosin-Nagant rifle was manufactured in Russia and imported through the state of Illinois, while the Feather Industries rifle was manufactured in the state of [] Colorado. Therefore, both weapons had previously traveled in interstate commerce.
ICE also determined that defendants Matias Gallegos-Villagomez and Guadalupe Villa Rodriguez were citizens of Mexico and they were illegally within the United States.
At sentencing, petitioner indicated that he had received a copy of the Presentence Investigation Report at least ten days earlier and had reviewed these materials with counsel with the assistance of an interpreter. His attorney had answered all of his questions regarding the Presentence Investigation Report. Transcript of Sentencing Proceedings, Doc. No. 133, PageID #445-46. Petitioner did not dispute any facts contained in the Presentence Investigation Report, nor did he dispute any legal conclusions of the Probation Officer. Id., PageID #447. In addition, Petitioner did not dispute the allegation that he had "fondled" the victim. Id., PageID #448. In imposing sentence, the Court stated:
First of all, the crime that you committed was a serious offense: drug deal gone bad. You became involved with the kidnapping that was violent. And then the victims were mother and daughter.Id., PageID #449-50. The Court tempered its "consideration of the proper sentence by the need to avoid unwarranted sentencing disparities among defendants who have similar records and who have been found guilty of similar conduct." Id., PageID #450. When offered his right of allocution, petitioner stated only that he felt bad for his family, that his children were very young and had no money, and that his wife was unemployed. Id., PageID #451. As noted supra, the Court imposed a sentence of 111 months imprisonment plus three years supervised release. Id., PageID #451. Petitioner is to be deported upon completion of his sentence and must not return to the United States without the permission of the Attorney General of the United States. Id., PageID #452.
In and of itself, that is a terrible crime. But unlike the other defendants, Mr. Villa Rodriguez, you took advantage of the female victim, the mother, Ms. Monica Barrera. . . . What you did to her was, simply put, obscene and it was harassment. The PSR indicates that you fondled her against her wishes and that you propositioned her, indicating that if she wanted to get away - implying that she would have to perform some sexual act or acts. So there is very little to mitigate the severity of the crime that you committed in this case.
Tempered by that is the fact that you are illegally in the country. I understand from the PSR that you grew up in impoverished circumstances, that I believe you were not. . . addicted at least, to drugs, but you came here to work and to send money home. You have four children. So I understand the desire of any parent to try to do whatever is necessary to make it better for their children, but engaging in criminal behavior certainly of this violent nature is not the correct way to go about it. It's certainly not the legal way to go about it. And the way you escalated the offense only makes it worse for you, Mr. Villa Rodriguez.
When a petitioner challenges his guilty plea on the basis that it was induced by an unkept promise, a court must determine whether the allegation, when viewed against the record of the plea hearing, is so palpably incredible, so patently frivolous or false, as to warrant summary dismissal. Blackledge v. Allison, 431 U.S. 63, 76 (1977). In applying this standard, a court will indulge a strong presumption that statements made by the parties at the plea hearing were truthful. Id. at 74.
In light of the record, petitioner's current allegations that his attorney failed to review discovery or the evidence against him, failed to review the Presentence Investigation Report or discuss with petitioner potential sentencing ramifications, and promised petitioner that he would be sentenced to a term of imprisonment of no more than five years are unworthy of credit. In the Plea Agreement, and again under penalty of perjury during the change of plea proceeding, petitioner agreed that the Court could impose the maximum sentence of 120 months imprisonment. He stated at the sentencing hearing that he had reviewed the Presentence Investigation Report with his attorney and had received a copy of that report at least ten days prior to the hearing. Petitioner at no time raised any issue regarding an alleged promise of a sentence of five years.
Petitioner also alleges the denial of the effective assistance of counsel in connection with his sentence. As noted supra, petitioner's Plea Agreement indicated that petitioner understood that the United States would "advocate that the Sentencing Guideline calculations should be made pursuant to U.S.S.G. §§ 2K2.1(c)(1)(A), 2X1.1 and 2A4.1 based on the underlying offense of hostage taking." Id., PageID #192. Nevertheless, petitioner now complains that his attorney was ineffective because he failed to object to the application of a higher base offense level based on kidnapping; petitioner contends that he was not responsible for kidnapping, as defined under 18 U.S.C. § 1201, because he "held" the victims for ransom but did not "seize" them. Motion to Vacate, PageID #510. Petitioner also contends that, because he was not convicted of a conspiracy, attempt or solicitation, his base offense level should have been determined by reference to U.S.S.G. § 2K2.1(a) - i.e., simple illegal possession of a firearm - which would have resulted in a substantially lower sentence. Neither of these arguments is persuasive.
Section 2K2.1(c)(1)(A) of the United States Sentencing Guidelines requires that, if the defendant used or possessed a firearm or ammunition in connection with the commission or attempted commission of another crime, U.S.S.G. § 2X1.1 is to be applied if the resulting offense level is greater than that under § 2K2.1. The conspiracy in this case involved kidnapping, abduction and unlawful restraint. Therefore, under U.S.S.G. § 2X1.1(c)(1), U.S.S.G. § 2A4.1 was applied to determine petitioner's base offense level of 32. Presentence Investigation Report, ¶ 50-51.
U.S.S.G. 2K2.1 provides:
(c) Cross Reference
(1) If the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, apply--
(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above; . . .
U.S.S.G. § 2X1.1(c)(1) provides:
(c) Cross Reference
(1) When an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section.
U.S.S.G. § 2A4.1 provides:
Kidnapping, Abduction, Unlawful Restraint
(a) Base Offense Level: 32
(b) Specific Offense Characteristics
(1) If a ransom demand or a demand upon government was made, increase by 6 levels.
(2) (A) If the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) if the victim sustained serious bodily injury, increase by 2 levels; or (C) if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.
(3) If a dangerous weapon was used, increase by 2 levels.
(4)(A) If the victim was not released before thirty days had elapsed, increase by 2 levels.
(B) If the victim was not released before seven days had elapsed, increase by 1 level.
(5) If the victim was sexually exploited, increase by 6 levels.
(6) If the victim is a minor and, in exchange for money or other consideration, was placed in the care or custody of another person who had no legal right to such care or custody of the victim, increase by 3 levels.
(7) If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in connection with, another offense or escape therefrom; or if another offense was committed during the kidnapping, abduction, or unlawful restraint, increase to--
(A) the offense level from the Chapter Two offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping, abduction, or unlawful restraint, or otherwise takes such conduct into account; or
(B) 4 plus the offense level from the offense guideline applicable to that other offense, but in no event greater than level 43, in any other case,
if the resulting offense level is greater than that determined above.
(c) Cross Reference
(1) If the victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder)
Petitioner's claim that the facts of the case fail to establish his criminal responsibility for kidnapping and that his attorney therefore performed in a constitutionally ineffective manner by failing to object to a recommended sentence under the higher base offense level for kidnapping, see Presentence Investigation Report, plainly lacks merit. In order to establish the offense of kidnapping under 18 U.S.C. § 1201, the government must establish that a defendant
(1) knowingly and willfully seized confined, decoyed, inveigled, kidnapped, abducted, or carried away [the alleged victims]; (2) for some benefit or reason; (3) using any means or instrumentality of interstate commerce.United States v. Jenkins, -- F.Supp.2d --, 2012 WL 4887389, at *17 (E.D.Ky. Oct. 15, 2012). The government may also establish the substantive offense of kidnapping by establishing that a defendant conspired to violate the kidnapping statute and one or more of the co-conspirators engaged in an overt act to bring about the object of the conspiracy. 18 U.S.C. § 1201(c). Plainly, the facts recounted at petitioner's guilty plea hearing, the truth of which petitioner conceded, met the elements required to establish a kidnapping offense. It was petitioner who was holding the victims in confinement at the time of their rescue and at least some of the conspirators used a means or instrumentality of interstate commerce when they used a telephone to make the ransom demand. See United States v. Brika, 487 F.3d 450 (6th Cir. 2007).
Moreover, the base offense level for kidnapping by cross reference can apply even if the defendant is never formally charged with or actually convicted of kidnapping. See United States v. Huff, No. 3:10-CR-73, 2012 WL 1565442, at *4 (E.D. Tenn. May 2, 2012)(citing United States v. Cowen, 196 F.3d 646, 649 (6th Cir.1999) ("[T]he sentencing guidelines do not restrict § 2K2.1(c), the cross-reference provision, to offenses that were charged in the indictment")). The government had sufficient evidence to convict petitioner of the offenses charged, including the offense of hostage taking.
Thus, petitioner was properly assigned a base offense level of 32. That figure was increased by six points because of the ransom demand and by an additional two points because of the use of a firearm. Presentence Investigation Report, ¶¶ 50-53. By virtue of his guilty plea, petitioner obtained a three level reduction for his acceptance of responsibility, resulting in a final offense level of 37 and a recommended sentencing range of 210 to 262 months. As noted supra, petitioner was sentenced to 111 months in prison - i.e., nine months below the 120 month statutory maximum term of incarceration even though his recommended guideline sentence was much higher. His attorney was not ineffective for failing to challenge petitioner's base offense level at sentencing and petitioner was not prejudiced by his trial attorney's representation in that regard. Moreover, petitioner has not established either that his counsel was constitutionally ineffective for failing to file a sentencing memorandum or that petitioner suffered prejudice by reason of such failure. See Strickland v. Washington, 466 U.S. 668 (1984).
In short, petitioner's claims of ineffective assistance of counsel, as reflected in claims one and two of the Motion to Vacate, are without merit.
Claim Three:
In claim three, petitioner alleges that he instructed his attorney to file an appeal but that no appeal was filed on his behalf. The sentencing transcript indicates that petitioner was advised of his right to appeal:
COURT: The sentence as stated will be imposed. Mr. Villa Rodriguez, you have the right to appeal this sentence. If you cannot afford an appeal, you have the right to apply for leave to file an appeal in forma pauperis, which means without the payment of any cost or expense to you. If that application is granted, the Clerk of Court will prepare or file a notice of appealTranscript of Sentencing Proceedings, PageID #453-54.
on your behalf at that time. Any such notice of appeal must be filed within ten days of the time that I enter judgment on your sentence. Do you wish the Court to direct the clerk's office to prepare or file a notice of appeal on your behalf at time?
(Defendant and counsel confer.)
MR. EDWARDS: Your Honor, perhaps what we could do to remedy the situation is that - I believe at this point in time he wants to file an appeal. But what I will represent to the Court is Ms. Lavelle [the interpreter] and I will travel to Delaware early next week and review all of this with him. I will notify the courtroom deputy if he wants to change his mind on this issue.
The failure of an attorney to file a timely appeal upon a defendant's request constitutes the ineffective assistance of counsel.
[E]very Court of Appeals that has addressed the issue has held that a lawyer's failure to appeal a judgment, in disregard of the defendant's request, is ineffective assistance of counsel regardless of whether the appeal would have been successful or not. See Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993); United States v. Horodner, 993 F.2d 191, 195 (9th Cir. 1993); Bonneau v. United States, 961 F.2d 17, 23 (1st Cir. 1992); United States v. Davis, 929 F.2d 554, 557 (10th Cir. 1991); Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir. 1988). We agree with those courts and hold that the failure to perfect a direct appeal, in derogation of a defendant's actual request, is a per se violation of the Sixth Amendment.Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998).
[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. See Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969); cf. Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) ("[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit"). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerialRoe v. Flores-Ortega, 528 U.S. 470, 478 (2000).
task, and the failure to file reflects inattention to the defendant's wishes.
Where a criminal defendant neither instructs his attorney to file an appeal nor asks that an appeal be taken, the Court must consider whether the attorney consulted with his client regarding the filing of an appeal. If defense counsel consulted with his client regarding the filing of an appeal, he performs in a professionally unreasonable manner only if he fails to follow a defendant's express instructions with respect to an appeal. Id., at 478. If counsel has not consulted with his client regarding the filing of an appeal, the court must consider whether this failure constitutes deficient performance. Id.
[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. See id., at 690, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (focusing on the totality of the circumstances). Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.Id. at 479-80.
Petitioner states in his affidavit that he instructed his attorney to file an appeal on his behalf and the sentencing transcript supports that assertion. His counsel also stated, however, that he would consult further with petitioner in that regard. No appeal was ever filed on petitioner's behalf, and his former counsel's affidavit does not address the issue. Under these circumstances, the Court concludes that an evidentiary hearing on claim three is warranted.
The Magistrate Judge therefore RECOMMENDS that counsel be appointed to represent Petitioner at an evidentiary hearing on his verified claim that he was denied the effective assistance of counsel because his attorney failed to file an appeal after being requested to do so and failed to consult with him regarding the filing of an appeal.
CLAIM FOUR
In claim four, petitioner alleges that the Court lacked jurisdiction based on the lack of evidence to establish the crime of hostage taking under 18 U.S.C. § 1203. Although this argument is irrelevant to the offense charged in Count 13 of the Indictment, and upon which petitioner actually stands convicted, petitioner appears to argue that his sentencing guideline range was improperly increased because it took into account the hostage taking, or kidnapping, addressed in Counts 1-8. Motion to Vacate, PageID #520. This claim is without merit.
To prove a hostage-taking offense, the government must prove, beyond a reasonable doubt, that the defendant detained or seized another person and, after detaining or seizing that person, the defendant threatened to kill, injure, or continue to detain that person for the purpose of compelling a third party to do an act. See 18 U.S.C. § 1203(a). The government must also prove that either the defendant or the person held was not a United States citizen at the time of the offense. See id. The statute for aider and abetter liability provides that "[w]hoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principle [in the offense]." 18 U.S.C. § 2(a). Thus, in order to convict a defendant as an aider andUnited States v. Angeles, No. 3:07-cr-92, 2010 WL 2103037, at *4 (E.D. Tenn. May 20, 2010).
abettor of the hostage-taking charge pursuant to 18 U.S.C. § 2, the government must prove, beyond a reasonable doubt: (1) that the offense of hostage-taking was committed; (2) that the defendant in some way aided or abetted someone else to commit the hostage-taking offense; and (3) that the defendant intended to commit the hostage-taking offense.
As discussed supra, petitioner admitted that he detained the victims for ransom. Moreover, petitioner and his co-defendants were illegally residing in the United States and one of the alleged victims, Monica Barrera, was not a citizen of the United States. The United States clearly had evidence of hostage taking and the Court did not lack subject matter jurisdiction over Counts 1-8 of the Indictment. In short, claim four is without merit.
WHEREUPON, the Magistrate Judge Magistrate Judge RECOMMENDS that counsel be appointed to represent petitioner at an evidentiary hearing on his claim that he was denied the effective assistance of counsel based on his attorney's failure to file an appeal after having been requested to do so and to consult with him regarding the filing of an appeal. The Magistrate Judge further RECOMMENDS that the remainder of Petitioner's claims be DISMISSED.
Petitioner's Motion for a Status Update, Doc. 182, is DENIED as moot.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
__________________________
Norah McCann King
United States Magistrate Judge